2022 (1) TMI 394 - HC - Service Tax

Export of service or not - Technical Testing and Analysis Services have been delivered outside India used outside India - fulfilment of all the condition under Rule 3 1 of the Export rules or not - clinical tests were performed on volunteers in India - credit on Catering Services when the same do not have any nexus with the output services provided by them viz. Technical Testing and Analysis Service - rent received by them for the period July 2007 to May 2008 - HELD THAT - The adjudication of the dispute whether the services provided by the volunteers human beings in India could be treated as export of services and is liable to tax on consideration received for providing such services would not come within the jurisdiction of this High Court. The appeal is dismissed as not maintainable.

Summary

Issues involved:
1. Jurisdiction of the High Court to adjudicate on the taxability of services provided by volunteers in India as export of services.
2. Maintainability of the appeal by the Revenue under Section 35G of the Central Excise Act, 1944.

Analysis:

Issue 1: Jurisdiction of the High Court
The High Court, in this case, was faced with the question of whether services provided by volunteers in India could be considered as export of services and thus be liable to tax. The Court noted that the appeal was filed by the Revenue under Section 35G of the Central Excise Act, 1944, challenging the order of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT). The substantial questions of law raised included whether certain services were delivered and used outside India, eligibility for CENVAT credit, and the allowance of appeal without proper analysis of facts. The Court highlighted that the issue of whether services provided by volunteers in India could be treated as export of services fell outside its jurisdiction. Consequently, the Court dismissed the appeal as not maintainable, granting the appellant-Revenue the liberty to seek redressal before the appropriate Court.

Issue 2: Maintainability of the appeal
The respondent raised a preliminary objection regarding the maintainability of the appeal by the Revenue. The respondent pointed out that a similar issue was pending before the Hon'ble Supreme Court in the case of Microsoft Corporation [I] Pvt. Ltd. The respondent also presented the order passed by CESTAT, New Delhi in the case of M/s. Microsoft Corporation [I] Pvt. Ltd. and a status report of a related case. The appellant admitted that the Revenue had filed an appeal before the Supreme Court in the Microsoft Corporation case. The Court, after considering these submissions, concluded that the adjudication of whether services provided by volunteers in India constituted export of services and were taxable did not fall within its jurisdiction. Therefore, the appeal was deemed not maintainable, allowing the appellant to pursue the matter in the appropriate Court as per the law.

In conclusion, the High Court's judgment centered on the jurisdictional limits of adjudicating on the taxability of services provided by volunteers in India as export of services. The Court dismissed the appeal by the Revenue, citing lack of jurisdiction and granting the appellant the liberty to seek remedy in the appropriate forum.